Michigan’s Supreme Court Show’s NJ the Way on COVID and the State Constitution

In Michigan Supreme Court: Governor exceeded powers during coronavirus pandemic, the Associated Press reported on October 2, 2020: 

The Michigan Supreme Court on Friday struck down months of orders by Gov. Gretchen Whitmer that were aimed at preventing the spread of the coronavirus, saying she illegally drew authority from a 1945 law that doesn’t apply.

The court said the law was an “unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution.”

The decision is an extraordinary development in a months-long tug-of-war between Whitmer, a Democrat, and the Republicans who control the Legislature who have complained that they’ve been shut out of major orders that have restricted education, the economy and health care. [emphasis added]

Change “Michigan” to “New Jersey” and you have the exact same constitutional problem here.

NJ Governor Governor Phil Murphy’s seventh extension of the COVID-19 public-health emergency, through October, has exposed a dangerous loophole in NJ governance. When a governor can declare a state of emergency, commandeer “emergency” powers to rule by executive order, enforce his edicts against whomever he chooses, impose penalties by fiat against businesses and individual who disobey his orders, usurp county and municipal governments, violate individual rights, and extend the emergency declaration in perpetuity, without limit or accountability to the legislature, we no longer have the rule of constitutional law. We have the rule of one man. 

A fundamental premise of American government is the principle of checks and balances through a separation of powers. The NJ State Constitution honors this principle by authorizing only the legislature to make laws (Article IV, Section 1. Paragraph 1,) and the governor only to “faithfully execute” the laws (Article V, Section 1, Paragraph 11). Yet Murphy is making law in contravention of the clear language of the NJ constitution, and his own swearing in promise to “support the Constitution of the United States and the Constitution of the State of New Jersey.” And he’s doing it based on a law, The Emergency Powers Act, that is clearly an unlawful delegation of legislative power to the executive branch in violation of the New Jersey Constitution. 

The governor’s invocation of his emergency powers allows him to keep these powers indefinitely, according to NJ Star-Ledger reporters Matt Arco and Brent Johnson. We need to change NJ’s emergency powers laws, by Supreme Court ruling, if necessary. And the court might be the only avenue open to those concerned with proper governance. As Paul Mulshine observes:

[W]e need an independent inquiry into the Murphy administration’s decision to deal with the Covid-19 crisis through emergency orders, without consulting with the Legislature.

“This is everything I’ve been saying,” the Republican [state Sen. Joe Pennacchio of Morris County] said. “This is why a committee with subpoena powers is needed.”

The Democratic-controlled Legislature has rejected every effort by the GOP minority to create such a panel and to put a limit on the governor’s emergency powers, he said.

Murphy is now on his seventh consecutive executive order and he has given no indication when he will return to normal governance.

“We’re not being governed. We’re being ruled,” Pennacchio observed. 

That will continue to be the case as long as the governor rules by executive order. 

The governor can continue to rule by executive order as long as he likes, and short of the Democratic controlled legislature rescinding the emergency powers law with a veto-proof majority, Murphy is the only one who can make that decision. It’s not an exaggeration to say that he has declared himself dictator of the state of New Jersey. 

And he’s acting “legally”, as the unconstitutional emergency powers he wields was willingly given up by the NJ legislature. To repeat, New Jersey’s Emergency Powers law is clearly an unlawful delegation of legislative power to the executive branch in violation of the New Jersey Constitution. Declarations of emergency should be limited, in my view to no more than 30 days; require legislative approval and oversight; after which the governor should be required to get legislative approval—in my view by at least a two-thirds legislative supermajority, to minimize partisan rubber stamping—before declaring any extension. 

We need to restore checks and balances. No NJ governor should ever again be allowed to usurp the state constitutional limits on his powers. 

Related Reading:

NJ Governor Murphy’s June 6, 2020 30-Day Extension of the State’s ‘Health Emergency’ Shows the Need to Reign In Executive Power

Long-term scare: The time for convening that state COVID-19 probe is long past  by Paul Mulshine

Michigan Supreme Court Strikes Down Gov. Gretchen Whitmer's COVID-19 Executive Orders by Bill Binion.

Steve Politi’s Cold Collectivist Attack on Two NJ Gym Businessmen Points to Broader Danger to Our Liberty

New Jersey’s Political Attack on Takeout Food Delivery Service Providers

NJ Governor Murphy’s COVID-19 Double Standard Toward the Demonstrators

Governor Murphy Doubles Down on his Double Standard

The Tyranny of Occupational Licensure is exposed by the COVID-19 Pandemic